By Kevin Daley
Supreme Court Reporter
The Daily Caller News Foundation on January 6, 2018
The last time the U.S. Supreme Court intervened in the travel ban cases, it ordered two circuit courts then considering travel ban challenges to render their decisions quickly.
A month later, one of those courts, the 4th U.S. Circuit Court of Appeals (based in Richmond, VA), has yet to produce its opinion on the administration’s latest travel sanctions. This continued delay suggests that the court is strategically withholding its ruling, so as to sabotage President Donald Trump’s signature immigration policy.
Here’s how that could happen.
In December, the Supreme Court issued an order lifting lower court injunctions barring enforcement of the third iteration of Trump’s travel sanctions. At that time, there were two separate challenges to the ban in the federal courts: one in the 4th Circuit, the other in the 9th Circuit.
The justices ordered those two courts to “render [their] decision with appropriate dispatch.” Such language is highly unusual in a Supreme Court order, and indicated that the justices hope to take up the cases themselves as soon as possible. Timing is of the essence here because the Court is quickly filling its schedule for the rest of the term. A final schedule for any given SCOTUS term, which ends in June, is generally set by the end of January.
In order for the Court to review these two cases and issue an opinion before the end of the current term, the 4th and 9th Circuits must issue opinions as soon as possible—before the end of January at the latest. After that point, it becomes quite unlikely that the justices could hear and decide the travel ban cases this term.
Recognizing these logistical challenges, the 9th Circuit produced its ruling on December 22. As in previous cases, the court found the travel sanctions unlawful. The 9th Circuit’s opinion has two rationales: It found the president’s order violated a provision of the Immigration and Nationality Act (INA) that forbids discrimination in the issuance of visas on the basis of nationality, as well as constitutional separation of powers principles.
The Trump administration appealed this ruling to the Supreme Court Friday.Despite the Supreme Court’s command, the 4th Circuit has not released its ruling. It is not clear when their ruling might be released. The longer the 4th Circuit waits, the more it appears that the court is purposefully withholding its ruling to ensure that it can’t be reviewed by the Supreme Court until much later this year.
This strategy—sit on the opinion for as long as possible—requires that the 4th Circuit issue a ruling on different grounds than the 9th Circuit’s, since a Supreme Court ruling overturning the 9th Circuit would also vacate the 4th Circuit’s ruling if they are based on the same principles.
If the 4th Circuit follows its previous trajectory, it is likely to do so. The court previously found that the travel ban violates the Constitution’s establishment clause, which forbids the government from favoring one religion over another. The court reasoned that Trump’s tweets and campaign statements reveal animus towards Islam, and that the travel ban is a manifestation of anti-Muslim bigotry.
This rationale is quite different than the 9th Circuit’s. Therefore, if the 4th Circuit waits just a few more months — or perhaps just weeks — to issue an opinion blocking the travel ban on establishment clause grounds, its quite possible the policy will be stalled for many months, since the Supreme Court will not have an opportunity to review the ruling until October, if not later.
It’s also worth noting that a particularly dogged skeptic of the travel ban, Judge James Wynn, sits on the 4th Circuit. Wynn, for example, compared the President’s second travel ban to the internment of Japanese Americans during World War II during a May 2017 oral argument concerning an earlier version of the policy. During the latest round of litigation, he suggested that the government was asking the court to ignore the reality of Trump’s alleged bigotry.
Given Wynn’s well-established anti-travel ban bona fides, it’s possible that Wynn himself is withholding a concurring opinion or a dissent, thereby preventing the 4th Circuit from releasing its ruling, and the Trump administration from implementing its travel sanctions.